321 / 322
GAZETTE
JULY/AUGUST
1984
appointed, could be used to assist
under an assigned District Court
Clerk.
2. The learned District Justice had no
option but to find that Mr. Healy, as
a matter of fact and law, was not
"assigned" once the Chief Examiner
of the Department of Justice so
stated on evidence.
Accepting the contention made on
behalf of the Appellant, Finlay P.
expressed the opinion that the scheme of
the 1926 Act and the appropriate District
Court Rule was that each and every peson
appointed as District Court Clerk must
be assigned to at least one District. The
practical consequences of the concept of
"attachment" would create absurd
anomalies. Persons holding the rank and
office of District Court Clerk and
involved in many of the duties, powers,
functions and responsibilities imposed by
statute on District Court Clerks would be
acting without authority. Therefore, once
uncontradicted evidence was placed
before the learned District Justice that
Mr. Healy was attached to and working
in the District Court Area of Naas at the
date on which he issued the Summonses,
the proper legal interpretaiton was that
he was "an assigned District Court
Clerk".
HELD:
There was no invalidity in the
Summons by reason of its having been
signed by Mr. Healy and the District
Justice erred in law in striking out the
Summons on the basis that he had no
jurisdiction to hear it. Proceedings should
be re-entered before the learned District
Justice for continuances.
The Director of Public Prosecutions
-v-
Kevin O'Rourke - High Court (per Finlay
P.). 25 July. 1983 - unreported.
George Bruen
FAMILY LAW
Claim by wife for share in family home.
After being transferred from Dublin to
Cork in 1972, the husband sold the family
home, realising £5,000, out of which
£3,200 was paid in discharge of the
mortgage on the house. There was a
balance over of £1,800, and it was agreed
that because the wife contributed one-
third of the purchase price of the house,
she was entitled to £600. She never
received the money and allowed her
husband use it.
The husband purchased a family home
costing £9,000 in Cork and succeeded in
getting his employers to take a mortgage
for the full amount of the purchase
money, thereby leaving the husband to
pay the instalments due under the
mortgage. He did not have to lay out any
part of the purchase money. The £1,800
balance from the first home was used by
the husband in furnishing and fitting the
new home. The marriage later broke
down. The wife claimed an interest in the
family home. The High Court held that
because the wife was entitled to one-third
of the £1,800, she became entitled to one-
third share in the furniture and fittings
(including carpets) in the home.
The wife appealed. She claimed that
the proper conclusion to be drawn from
the use of her money in the home was that
it gave her a one-third share in the house
itself.
Henchy J. (Griffin J. and Hederman J.
concurring) referred to the judgment of
Kenny J. in C. -v-
C.
[1976] I.R. 254, and
said that since that decision it had been
judicially accepted that where the
matrimonial home had been purchased in
the name of the husband, and the wife
had, either directly or indirectly, made
contributions towards the purchase price
or the discharge of mortgage instalments,
the husband would be held to be a trustee
for the wife of a share in the house
roughly corresponding with the
proportion of the purchase money
represented by the wife's total contribu-
tion. Such a trust would be inferred when
the wife's contribution was of such a size
and kind as would justify the conclusion
that the acquisition of the house was
achieved by the joint efforts of the spouse.
When the wife's contribution had been
indirect (such as by contributing, by
means of her earnings, to a general family
fund) the Courts would, in the absence of
any express or implied agreement to the
contrary, infer a trust in favour of the
wife, on the ground that she had to that
extent relieved the husband of the
financial burden he incurred in
purchasing the house.
Henchy J. was unable to accede to the
proposition that the wife's £600 went into
a family fund and that to that extent it
eased the financial liability incurred by
the husband in purchasing the house.
HELD: the wife's £600 was in no way
applied to the purchase of the house. The
true position was that found by Costello
J., namely that the £600 was applied by
the husband, not in acquiring the house,
but as part of the £1,800 he spent on
furniture and fittings. The expenditure by
the husband of the £600 could not be said
to have given the wife any beneficial
interest in the house.
Dismissing the appeal, the Court held
that the wife got a one-third share in the
furniture and fittings (including carpets).
McC. -v- McC. - Supreme Court (per
Henchy ./.. Griffin and Hederman J.), 29
March. 1984 - unreported.
Damian McHugh
CRIMINAL INJURIES — STATUTE
OF LIMITATIONS
Delay in service of application to Circuit
Court for compensation — Power of
Circuit Court to extend the time prescribed
by statute for making such application —
Whether or not within the powers of the
Circuit Court to extend the time when
extension of same would be in contraven-
tion of the provisions of the Statute of
Limitations Act, 1957
An application was made pursuant to
the Local Government (Ireland) Act,
1898 and the Damage to Property
Compensation Act, 1923, by Woodrow
Packaging Limited for goods destroyed
when a warehouse was destroyed by fire
on 21 May, 1974. The Applicants were
not the owners of the warehouse but had
goods in the premises when it was
destroyed and accordingly a preliminary
notice of intention to apply for
compensation was served in accordance
with Order 52 of the Rules of the Circuit
Court, 1950.
The Applicant decided to withhold
proceeding with its claim pending
determination of the application which
had been made by the owners of the
building. Ultimately a decree was granted
in favour of the owners for compensation
for the damage in Dublin Circuit Court
on 5 December, 1980.
Once these matters had been
determined the applicant applied on 31
January, 1982 to the Dublin Circuit
Court by way of Notice of Motion
claiming:—
A. An Order pursuant to Section 21(2)
of the Damage to Property
(Compensation) Act, 1923 and
pursuant to Order 59 Rule 10 of the
Rules of the Circuit Court extending
the time within which the Applicant
can apply to the Circuit Court for
compensation for criminal injuries
committed on 21 May, 1974.
B. An Order for the costs of the
Motion.
The Judge extended the time as sought
in the Notice of Motion to 31 January,
1983 and an appeal against that Order
was made by the Respondent.
It is clear that it was the intention of the
Applicant when serving its Notice of
Motion to seek leave of the Court to
extend the time prescribed by the Statute
of Limitations, 1957 as the Rules of the
Circuit Court only provide that the
Preliminary Notice has to be served
within seven days from the date of the
commission of a criminal injury and do
not apply any time limits for bringing an
application to the Court for compensa-
tion for the criminal injury. The only
rules of Court that apply in relation to
such a Notice of Application are that it
should be served at least 15 days before
the date upon which the application is
intended to be made in the case of
applications in the Dublin Circuit Court
area.
Section 11( l)(e) of the Statute of
Limitations 1957 imposes a time limit of
six years in relation to any cause of action
accrued to .actions to recover sums
recoverable by virtue of any enactment
(with exceptions which are not relevant to
this case).
X IX